I spoke in two debates in the Lords this week following the EU referendum on 23 June. One point was common to both speeches. On Tuesday and Wednesday, we had a debate on the outcome of the referendum. I was speaker number 105, out of 115, but I like to think I still had something to add to the debate. I was at least the only speaker to cite Anthony Downs, A. V. Dicey, and the ruling of the Chairman of Ways and Means, Sir Robert Grant-Ferris, on 29 February 1972. In the speech, I developed three themes, on the referendum campaign, the referendum result, and whether primary legislation was necessary to trigger a notification under Article 50 of the Treaty on European Union.
The point I made about the referendum was that while it may not be binding, in that there is no statutory obligation on government to trigger an Article 50 notification, it is misleading to refer to it as advisory. During the course of the debate, some peers were arguing that as it was advisory, and as only a minority of the total electorate had voted for the UK to leave the EU, we should consider ignoring the result or hold a second referendum. I was keen to knock this idea on the head. We invited electors to vote on whether to remain in or to leave the EU. The majority who voted went for the leave option. That is a result which there is no legal obligation to fulfil, but where there is clearly a political obligation. The distinction is one recognised by Dicey. We cannot apply rules retrospectively. If we wanted a threshold requirement, we needed to stipulate that at the time. I raised the issue of a threshold on second reading of the EU Referendum Bill, but there appeared no appetite to pursue it. We therefore were left in a situation where a simple majority suffices. That may not be desirable, but it is the reality.
I returned to the point the following day, when Baroness King of Bow (Oona King) had a question for short debate, asking the Government whether it had made an assessment of the case for a second referendum on membership of the EU. She said she was making the case for a later referendum once the terms of exit were known, but her argument was based on the outcome of last month’s referendum, in effect arguing that the electors had got it wrong. In my short speech (given the number of speakers, we only had three minutes each), I reprised various of the points I made the previous day, but stressed that rerunning the referendum would convey the impression that the political class was not prepared to accept what the electors had decided. That would undermine trust in the political process when that trust is already fragile.
There may be a case for a referendum later when the terms are known (though there is a debate to be had as to what the question would be, and whether a binary question would suffice), but to challenge the result of last month’s referendum is naïve and dangerously so. We may not like it, but we have the result and we have to stick to the rules as they existed and were understood by the electors.